What Is Common Law Marriage?
"The relationship between a husband and a wife in law which results from their agreement to be husband and wife without the necessity of a license or ceremony." Iowa Code (Section 598.1).
Essentially what this means is that under Iowa law if two people – both of whom are over the age of 18 and both of whom are eligible to marry – move into a house together and agree to be married then they may be considered married under Iowa law.
This is an exception to Iowa law, as Iowa requires a marriage license and a ceremony in order for people to be legally married .
In order for a couple to be determined to be married under Iowa’s common law the couple must be "presently" married with the intent to remain married. A Court requires the following to determine that a couple is presently married:
- The parties must be persons competent to enter into a marriage;
- Those parties must hold themselves out as husband and wife;
- Their conduct and the circumstances of the case, taken in their entirety, must warrant an inference that a present marriage in fact exists.
Iowa’s Common Law Marriage
Iowa law adheres to the traditional requirements for common law marriage, which include both an intent to marry and cohabitation. This standard is applied strictly so that even when it seems like a common law marriage is present—such as a couple living together for an extended time—unless there is clear and convincing evidence that both parties intended to be married, they will be determined legally as unmarried. Marriage licenses were not required before 1923, so many early marriages were treated as common law marriages, but since then, Iowa has pronounced that common law marriage is not authorized or recognized. Since 1976, cohabitating couples who did not go through the formalities of marriage can alternatively fill out a Certificate of Marriage Attestation to establish legal recognition of their relationship. An attestation requires a joint declaration in front of two witnesses and an officer of the court. Afterward, the parties can receive a certificate of marriage attestation, which is then filed with the county clerk and serves the same purposes as a marriage license. However, this option is not available for cohabitating couples who live together without intent to marry, in which case they will have no legal recognition. Cohabitating couples intending to marry should execute an attestation document to create a legally recognized relationship without going through the added expense of planning a full ceremony. In Iowa, obtaining a dissolution of a common law marriage is no different than for a civil marriage through a court-decreed divorce. Common-law spouses who wish to end their relationship must meet residency requirements and apply for dissolution directly through the court system, for which the court will require evidence of cohabitation and intent to marry.
To Have a Common Law Marriage in Iowa, You and Your Spouse…
Mutual consent, cohabitation, and public representation of being married are the key elements that make a relationship a common law marriage in Iowa. Both partners within the relationship must freely and willingly agree to be married. For instance, if one partner enters into the supposed marriage under duress or if either one of the two people is underage or has the mental capacity of a child, then it will not be considered a valid common law marriage.
Cohabitation is another requirement for a common law marriage in Iowa. The couple must reside together using the same last name. That means that they would be residing at the same address and presenting themselves to others in a way that suggests that they are married. For example, the couple would be able to say that they have lived together since a certain year, and when asked their relationship, they would say that they are married.
Iowa does not have a common law marriage license. At the moment that the couple agrees to become married, they do not register or file for their own license to become married. Unlike a traditional marriage, there is no significant paperwork to file.
The Legal Ramifications of Common Law Marriage in Iowa
In Iowa, common law marriage creates the same presumption of legitimacy as if the couple had entered into a ceremonial marriage. A common law spouse has the same legal rights and responsibilities as a spouse in a ceremonial marriage with regard to property, child support, spousal support, health care decisions and eligibility for certain financial benefits such as intestate inheritance and Social Security survivor’s benefits.
Given the legitimacy that is afforded a common law marriage, a common law spouse has the right to property acquired during the marriage and the right to seek spousal support as well as child support.
Iowa recognizes that in most cases, joint property passes to both spouses upon the death of one spouse. Each spouse has a right to the assets that have been acquired during the common law marriage. For points of reference, a basic overview of matters relating to individual ownership, shared ownership and inheritance for couples is outlined below:
Property rights may be affected by a common law marriage and consideration should be given to whether a written agreement defining the terms and conditions regarding property ownership should be entered into.
Proving Your Common Law Marriage in Iowa
Evidence to Prove a Common Law Marriage in Iowa
To prove a common law marriage in Iowa, the burden of proof lies with the person who asserts the existence of the common law marriage. Normally, this is the party to the divorce who would be considered the dependent spouse. The party must introduce evidence to establish every element necessary to show a common law marriage is valid. For example , showing an agreement to be married. The burden of proof utilized in Iowa divorce cases and domestic relations matters is a fair preponderance of the evidence, which means the evidence must show a more likely than not chance that the common law marriage existed. Any evidence that fails to meet that standard could result in the court finding that no common law marital relationship existed.
Ending a Common Law Marriage in Iowa
Iowa’s common law marriages are considered valid until a court proceeding separates the parties through decree or order. Examples of divorces granted in Iowa could terminate such a marriage as well if the parties had operated as husband and wife for a number of years, property had been acquired, and debts incurred. You always have peace of mind in knowing that one’s actions in an Iowa common law marriage will be respected by the State of Iowa to the extent creating a duty to effect a legal separation in a divorce proceeding in district court. When a common law couple ends their relationship, it will be necessary to legally separate as all marriages under Iowa law must be terminated only by a decree of dissolution entered in the district court. While some people think that they will save money by simply deciding on their own how to divide property and pay debts, a decision and agreement between the parties to dissolve their relationship is short-sighted and dangerous because it is not binding upon any creditors. Typically, the property acquired during a marriage is classified as either marital property or separate property. Separate property is property acquired by either spouse prior to the marriage or a specific inheritance or gift to only one spouse during the marriage. It includes any increase in value of that property. It also can include nonmarital property which has been mixed with marital property to the point of being inextricably intertwined to create a "commingling", making all of it marital property. However, prior to the dissolution, marital property remains jointly owned and can only be transferred as the joint decision of both spouses. Marital property is classified as that property acquired during the marriage. This means that all assets of either or both parties at the time of the signing and filing of the Petition for Dissolution of Marriage, including assets acquired after separation up to the date of finalization of the decree of dissolution and debt incurred after the date of separation to this date, must be identified, valued, and divided. These cases may have complicated tax considerations, pension valuation issues, business valuations and division considerations.
Common Law Marriage in Iowa and Children and Family
When it comes to the impacts of common law marriage in Iowa on any children you have, what does common law marriage mean? In a typical marriage, you assume the legal status as husband or wife and your new legal status impacts everything from the ability to file taxes to where assets go if you die. Common law marriage acts in the exact same way. So does that mean the children you have together are also considered children of the marriage? Yes. Even if a couple has only been living together for a few months, those children are still considered children of the marriage because of the application of the law. The one area where common law marriage and traditional marriage differ is when it comes to dividing property after a marriage has ended. With a traditional marriage, dividing up the assets can be more straightforward because of the marriage license. A nontraditional marriage can raise more questions about who owns what, particularly if no records exist of when an asset was purchased. When it comes to custody of a child, Iowa treats child custody and common law marriage the same as it does for traditional marriages. There should be no difference in how the law applies to either marriage when it comes to your rights as a parent.
Frequently Asked Questions About Common Law Marriage in Iowa
I’ve lived with my partner for sixteen years; are we common law married?
Not necessarily; the length of your relationship is not enough on its own to establish common law marriage. Under the current law of Iowa, you would have to hold yourself out to the public as a married couple and have the intent to be married. Decision-Makers’ Corner: If you have questions about whether you are married, consult an Iowa family law professional. Iowa law remains murky on a number of issues regarding common law marriage; much of the law is based on judge-made law or case precedent from other jurisdictions. Because of the unknowns, you could be viewed as married by some and unmarried by others.
Will my common law marriage be recognized in other states?
Yes, however , there are several states where Iowa’s common law marriage would not be recognized. For instance, Wisconsin does not recognize common law marriage if the couple was married after 1986, and Minnesota does not recognize common law marriage as to relationships that originated in other states.
What types of rights come with your common law marriage?
These rights are the same as those given to formally married couples and apply to assets and debts you acquire during your marriage, as well as benefits you enjoy as a couple. Among other things, you have access to your partner’s government or employer-sponsored insurance benefits, including health insurance, pension plans and social security benefits. You also have a number of medical rights under Iowa law, including the ability to make medical decisions for your partner.
